Justices Roberts, Kennedy and Scalia Attack Obamacare Mandate in Day Two

There was talk of broccoli. And gym memberships. Even burials. All the potential future mandates Congress could enact, thereby forcing us to make purchases because it’s good for us, and it’s good for the country.

Despite the hysteria you may be seeing from both supporters and opponents of the Patient Protection and Affordable Care Act, it’s too difficult to say that one particular side “won” today. The questions were generally tough – especially from Justice Anthony Kennedy – and the final decision will come down to whether the Court decides that the mandate extends the commerce power too much, or if it’s narrow enough to allow Congress to address a national concern.

While the chief Obamacare defender found himself in tight spots, the attorneys attacking the mandate weren't spared from hard questions. The major swing vote on the Court, Justice Kennedy, revealed that he might not be ready to strike down the mandate.

Solicitor General Donald Verrilli was first to advocate his position. He stumbled out of the blocks, stammering and coughing as he made his opening statement.

Once he picked up momentum, however, he’d barely begun explaining Congress’ intent in enacting the “minimum coverage provision” (the government doesn’t use the word “mandate”) before Justice Antonin Scalia hit him with the first question.

He wanted to know if the government could regulate his failure to purchase anything . No, said Mr. Verrilli; health insurance is unique because everyone is in the market for health care at one point or another in their lives, and they can’t control when they’ll need it.

Chief Justice John Roberts then asked if, by this justification, the government could force individuals to buy a cell phone, as one never knows when the need to call 911 will arise. Justice Samuel Alito chimed in with burials – we’ll all die someday, and will need to cover that cost, too, right?

Mr. Verrilli disagreed, and a debate about the particular nature of the regulation at hand (i.e. the mandate) arose: the central tension lies with whether Congress is regulating commerce that is already occurring, or whether they are forcing new customers into the market, thereby creating commerce.

Obviously, the government takes the first position, whereas the Justices were suggesting that the latter. This lead into the nature of the market that’s being regulated: is it health care, i.e. treatment, or health insurance, i.e. the method of paying for treatment?

The Justices seemed willing to accept that technically, everyone participates in health care; but does that, then, give the government the right to force people into the insurance market?